Aetna Casualty and Surety Company v. United States, 29169.

• Decision Date: 29 December 1970
• Docket Number: No. 29169.,29169.
• Citation: 435 F.2d 1082
• Parties: The AETNA CASUALTY AND SURETY COMPANY, Plaintiff-Appellee, v. UNITED STATES of America et al., Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

435 F.2d 1082 (1970)

The AETNA CASUALTY AND SURETY COMPANY, Plaintiff-Appellee, v. UNITED STATES of America et al., Defendants-Appellants.

No. 29169.

United States Court of Appeals, Fifth Circuit.

December 29, 1970.

Kenneth J. Mighell, Asst. U. S. Atty., Dallas, Tex., Eldon B. Mahon, U. S. Atty., Fort Worth, Tex., Johnnie M. Walters, Asst. Atty. Gen., Lee A. Jackson, Karl Schmeidler, Crombie J. D. Garrett, Attys., Dept. of Justice, Washington, D. C., for defendants-appellants.

James A. Williams, Bailey, Williams, Weber & Allums, Dallas, Tex., for plaintiff-appellee.

Before RIVES and SIMPSON, Circuit Judges, and NICHOLS, Judge of the Court of Claims.^*

NICHOLS, Judge:

This case comes up on appeal by the Government from an order of the court below granting plaintiff's motion for summary judgment.

The plaintiff is a surety under the Miller Act, 40 U.S.C. § 270a et seq., on a contract for the construction of park roads on the McGee Bend Dam and Reservoir, Angelina, Texas. The question presented here is like that stated in the controlling case of Trinity Universal Insurance Company v. United States, 382 F.2d 317, 318 (5th Cir. 1967):

This case presents the clear-cut issue of whether, when a Miller Act surety completes a defaulted contract pursuant to its performance bond, the government may set off taxes owed by the contractor against the surety\'s claim to the fund retained by the government to insure performance.

The facts are stipulated. Earl W. Nunneley and U. S. Paving Corporation (hereinafter contractor) entered into contract No. DA-41-443-CIVENG-63-1449 with the U. S. Army Corps of Engineers for the construction of the aforementioned roads. In response to an application by the contractor, plaintiff agreed to act as surety and issued its performance and payment bonds.

Sometime after commencement of performance, the contractor became financially unable to complete the contract, whereupon the plaintiff, by agreement with the contractor, undertook to discharge the obligations thereunder. Plaintiff completed the contract to the satisfaction of the Corps of Engineers and in so doing expended in performance sums in excess of receipts and in excess of the contract price.

The Corps of Engineers held retained funds in the amount of $216,712.86, which became the subject of a levy by the Internal Revenue Service for taxes owed by the contractor in the total amount of $184,052.99. The plaintiff made demand for the entire retained sum but the Corps of Engineers refused to pay. Plaintiff then brought this suit in the District Court.

Only a portion of the taxes in question were directly attributable to jobs bonded by the plaintiff and none were incurred subsequent to the time plaintiff began performance. All such taxes incurred subsequent to the time plaintiff began performance have been paid.

There is no longer any question of the law involved in a situation such as this. Whether the surety entered a specific agreement with the Government to complete the contract, as in Trinity, supra, or made such an agreement with the defaulting contractor, as here, is immaterial. The applicable rule was stated in Trinity at 320:

* * *. The surety who undertakes to complete the project is entitled to the funds in the hands of the government not as a creditor and subject to set off, but as a subrogee having the same rights to the funds as the government.

* * * * * *

The defendant, while not asking us to overrule our holding in Trinity, refers us to Standard Accident Insurance Company v. United States, 97 F.Supp. 829, 119 Ct.Cl. 749 (1951), a case arising in the Court of Claims which resulted in a contrary decision. Not only did this court reject the holding of that case in Trinity, but the Court of Claims itself specifically overruled it in the recent case of Security Insurance Company of Hartford v. United States, 428 F.2d 838, 192 Ct.Cl. 754 (1970), in which it decided to follow Trinity as stating the better rule. See also National Shawmut Bank of Boston v. New Amsterdam Casualty Company, 411 F.2d 843 (1st Cir. 1969).

The defendant's brief states the issue as revolving around the relative rights of the parties to the retained funds when the surety is claiming under its payment bond. For reasons fully explained in the cited cases, the situation there would be different and the surety's claim would be subject to set off for...